All Foreclosure The Law of Fixtures

Posted by Bill H on May 19, 2005 at 20:25:23:

In Reply to: Removal of Fixtures Posted by Cheryl on May 19, 2005 at 00:10:35:

: I have a friend in default of her mortgage. They are going to let the home be foreclosed upon for lack of finances. They had kitchen cabinets put in approx. a year ago. My friend is in serious need of money and is willing to sell me her cabinets (b/c I need cabinets!). At what point can we not do this? It is my understanding that they've not received any notification of foreclosure from the bank. Anyone have any help on this? Thanks.Landlords, Tenants, Buyers, Sellers, Agents and FIXTURES!

"What is a fixture, is this a fixture"? I am not an attorney and do not give legal advice. Good common sense and a look at what is called the law of fixturesshould enable you to determine if it "is" or "is not" a fixture and whether it is included or excludedin a real estate transaction. Generally when personal property items are bolted, nailed, screwed, cemented, plastered, etc., or built into the structure or attached to the land it becomes a fixture,unless it is specifically excluded. The law of fixtures calls out five basic tests to determine if it is a fixture:

1. The Method of attachment. If it permanently attached and cannot be removed withoutdamaging the building, it is a fixture. Example, a television set can be unplugged and removedbut a roof-top antenna that is bolted or screwed to the roof is included in the sale.

2. Adaptability for use with the property. When an item is specially built into the structure,such as a dishwasher or stove, it becomes a fixture. Likewise a portable dishwasher or freestanding range is not.

3. Intention of the parties. What is the intent of the parties involved. If in a sale, the sellerspecifically states, "This dining room chandelier is not included." and this information is madeknown to the buyer before an offer is made, even though it is permanently attached and would beconsidered a fixture, it is not included in the sale.

4. Agreement of the parties. Most real estate contracts spell out what is included and the partiescan agree to this list. Even though some may not be fixtures they are included in the sales priceand sale.

5. Relationship of the parties. If the four tests above fail and it goes to litigation and court,generally the courts will favor (a) buyer over seller, (b) tenant over landlord, and (c) lender overborrower.

Exceptions to the rules. Exceptions to these rules apply to business and trade fixtures and theowner is allowed to remove business or trade equipment which was permanently attached and theproperty (building) is restored to its previous condition.

DISCLAIMER: Use Common Sense: This is not intended to be legal advice and you are cautioned not to rely upon it as such. For legal advice, consult a real estate attorney.

This should help you figure out if it is a fixture.

Good Luck,Bill H



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